What were the intentions of the “original parties” to the CC&Rs?

I found this HOA case revealing of the misguided attitude, that mindset that HOAs are unquestionably solidly “legit.”  The NC appeals court cited Wise, 357 N.C. 396, 584 S.E.2d 731 (citations omitted, emphasis added) :

“As a general rule, ‘[r]estrictive covenants are valid so long as they do not impair the enjoyment of the estate and are not contrary to the public interest.’ (describing freedom of contract generally). Restrictive covenants are legitimate tools of developers so long as they are clearly and narrowly drawn. The original parties to a restrictive covenant may structure the covenants, and any corresponding enforcement mechanism, in virtually any fashion they see fit. (‘an owner of land in fee has a right to sell his land subject to any restrictions he may see fit to impose’). A court will generally enforce such covenants `to the same extent that it would lend judicial sanction to any other valid contractual relationship.’ As with any contract, when interpreting a restrictive covenant, ‘the fundamental rule is that the intention of the parties governs'”.

Id. at 400-01, Wise, 584 S.E.2d at 735-36.

Therefore, under the common law, developers and lot purchasers were free to create almost any permutation of homeowners association the parties desired. Not only could the restrictive covenants themselves be structured as the parties saw fit, a homeowners association enforcing those covenants could conceivably have a wide variety of enforcement tools at its disposal.

What is missing here is an answer to the question: Who were the “original parties”?  What were their intentions?  Well, it seems quite obvious that the original parties are none other than the declarant and his “stand-in” employees and  not at all any of the subsequent homeowners.  I mean,  what am I missing here?   It gets back to the obvious Contract Law 101 requirement of a meeting of the minds.  How can an oppressive, adhesion contract be viewed by our lofty courts as to the intents of the “original parties”, and then bind the poor homeowner who is not required by law to even read it to be bound under servitudes (covenant) law.

And let’s not get into the judicial scrutiny requirements that all  “contracts” must pass to bind the surrender of one’s rights, privileges, immunities and freedoms under state laws and the Constitution.  I mean, isn’t this still America?

See Bodine v. Harris Village POA, No. COA09-1458, (N.C. App., September 7, 2010). (http://www.leagle.com/unsecure/page.htm?shortname=inncco20100907514).

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Published in: on September 8, 2010 at 3:54 pm  Leave a Comment  
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